General Partner, with each such appointment becoming effective on December 1, 2021 (the “New Executives”). Prior to December 1, 2021, each of Messrs. Gibbs, Keuss and Hartigan will serve as employees of the General Partner;
WHEREAS, in connection with the hiring of the New Executives, the New Executives were issued (i) a total of 14,100,000 Common Units in the form of inducement awards as an inducement material to each of the New Executives becoming employees of the General Partner in accordance with Section 711(a) of the NYSE American Company Guide, and (ii) a total of 3,600,000 Common Units in the form of awards pursuant to Evolve’s existing long-term incentive plan (such 17,700,000 Common Units, collectively, the “New Executive Units”);
WHEREAS, the New Executive Units qualify as Junior Securities Deemed Outstanding for purposes of the Warrant;
WHEREAS, Section 4(a) of the Partnership’s Long-Term Incentive Plan, effective March 6, 2015 (the “LTIP”), provides that upon the issuance of additional Units from time to time, the maximum number of Units that may be delivered or reserved for delivery with respect to the LTIP shall be automatically increased by a number of Units equal to the lesser of (i) fifteen percent (15%) of such additional Units, or (ii) such lesser number of Units as determined by the Board (such increase, the “LTIP Increase”);
WHEREAS, the maximum LTIP Increase resulting from the issuance of the New Executive Units is 2,655,000 Units (the “LTIP Units”);
WHEREAS, the LTIP Units also qualify as Junior Securities Deemed Outstanding for purposes of the Warrant; and
WHEREAS, the Partnership and the Holder desire to amend the Warrant to include the New Executive Units and the LTIP Units in the definition of Excluded Junior Securities.
NOW, THEREFORE, in consideration of the covenants, conditions and agreements contained herein, the General Partner does hereby amend the Partnership Agreement as follows:
1.Amendments. The Warrant is hereby amended as follows:
a.The definition of “Excluded Junior Securities” in Section 1 of the Warrant is hereby amended and restated in its entirety as follows:
“Excluded Junior Securities” means (i) any class or series of Junior Security that, with respect to distributions on such Junior Securities of cash or property and distributions upon liquidation of the Partnership (taking into account the intended effects of the allocation of gain and losses as provided in this Agreement), ranks junior to the Class C Preferred Units and senior to the Common Units, the proceeds from the sale of which are used to redeem the Class C Preferred Units, (ii) 1,866,823 Common Units reserved for issuance under the LTIP on February 25, 2021, so long as such Common Units are so reserved or issued pursuant to the LTIP, (iii) 2,064,487 Common Units reserved for issuance under the LTIP on May 20, 2021, so long as such Common Units are so reserved or issued pursuant to the LTIP, (iv) 1,201,928 Common Units reserved for issuance under the LTIP on August 20,
